an exceptionally lucid, challenging and innovative book about an important legal topic ... succinct and excellently structured text ... Porat and Stein’s admirable text is one so timely, well expressed and ambitious in its aim that no scholar working in the field can afford not to read it carefully and address its thesis with determination.
Jane Stapleton, in 66 Modern Law Review 308 (2003)
The most thorough and interesting wholesale revision of tort law's conception of causation.
Ernest Weinrib, in 61 University of Toronto Law Journal 191, 210 (2011)
Tort Liability under Uncertainty offers a comprehensive analysis of the liability problems that arise in connection with causally uncertain damages. The book critically discusses the American, English and Israeli case-law, along with scholarly writings that appeared across the globe, and offers a number of innovative solutions to the uncertainty problem (one of those solutions was incorporated in the Third Restatement of Torts). Specifically, the book examines the allocation of the burdens of proof in cases featuring causally uncertain damages; the res ipsa loquitur doctrine; collective liability rules; and liability for creating risk. The book’s final chapters develop the evidential damage doctrine (with respect to which the book has become a standard citation in Israel, following the adoption of its authors’ idea by the Israeli Supreme Court).
Table of Contents
Introduction Chapter I Liability under Uncertainty: Allocating the Risk of Error I. The Nature of the Problem II. Burden of Proof and Utility III. Burden of Proof and Fairness IV. Special Cases V. Two Interpretations of the Civil Standard of Proof Chapter II The Tension between the Burden of Proof and Tort Law Objectives I. Cases of Wrongful Damage where the WrongdoerIs Unidentifiable II. Cases of Wrongful Damage where the Injured PartyIs Unidentifiable III. Cases of Wrongful Conductthat May or May Not Have Resulted in Damage IV. Cases of Damage Wrongfully Inflicted by Separate Wrongdoers V. Cases of Damage Originatingboth from a Wrongdoer and a Non-Wrongful Cause Chapter III Res Ipsa Loquitur I. Res Ipsa Loquitur and Statistical Negligence II. Strong Presumption or Weak Presumption? III. Res Ipsa Loquitur and the Cheapest Cost Avoider IV. Res Ipsa Loquitur and Liability for Uncertainty Chapter IV Risk as Damage I. The Nature of the Problem II. Tort Liability for Bare Risk III. Liability for Lost Chances Chapter V Collective Liability I. The Nature of the Problem II. IsCollective LiabilityJustified? III. Collective Liability under Corrective Justice IV. Collective Liability and Deterrence V. Spreading the Damage VI. Incentives for Revealing the Truth Chapter VI Liability for Uncertainty: Making Evidential Damage Actionable I. The Nature of Evidential Damage II.Evidential Damage, Corrective Justice, and the Law of Negligence III. Evidential Damage and Deterrence
Chapter VII The Evidential Damage Doctrine: Applications and Evaluation I. Cases of Wrongful Damage Where the Wrongdoer Is Unidentifiable II. Cases of Wrongful Damage Where the Injured Party Is Unidentifiable III. Cases of Wrongful Conduct that May or May not Have Resulted in Damage IV. Cases of Damage Wrongfully Inflicted by Separate Wrongdoers V. Cases of Damage Originating both from a Wrongdoer and a Non-Wrongful Cause